193 Ind. 463 | Ind. | 1923
Appellee sued to recover, damages for the death of her decedent, who was killed at a crossing in the city of Evansville by a collision between an automobile which he was driving and a locomotive drawing
The answers to interrogatories disclose with reasonable certainty that the negligence charged in the complaint of which the jury found defendant to have been guilty was failing to close the gates at the crossing, in compliance with the alleged requirements of a city ordinance, appellee’s brief asserting that they “clearly show that the verdict was based on the negligence of appellant in failing to operate the gates.”
Overruling the motion for a new trial is assigned as error, under which assignment, appellant complains of the exclusion of certain evidence, and of the giving and refusal to give certain instructions. It was stipulated that the railroad was built under authority of a franchise agreement entered into between the board of public works of the city of Evansville and the railroad company that built the track, as approved by a city ordinance adopted in 1909, reciting the franchise agreement in the preamble, and enacting “that said contract and agreement be. in all things confirmed and approved”, which agreement stipulated, among other things, that “suitable gates are to be maintained at” the crossing where the collision occurred, and that “said gates are to be operated day and night”, and that for each violation of the provisions as to “maintaining lights or gates” the railroad company should be fined $25. But it contained no specifications as to how the
Appellee insists that a franchise contract entered into by express statutory authority between a railroad company and a city, as represented by the board of public works in negotiating it and the common council in confirming and approving it by ordinance, could not be abrogated or changed by the mere passage of a subsequent ordinance, without any consideration for a new or modified agreement passing from one party to the
It may be that the part of the franchise agreement as confirmed by ordinance which granted to the railroad company authority to construct and operate a double track railroad over a certain route through the city, and across and along certain streets in and upon parts thereof as designated, and determined how close together the two tracks must be, and bound the railroad company to grade and improve the space between its tracks and for eighteen inches on either side to conform to any improvement laid in the rest of the street, and to pay the cost thereof, and to keep such space in repair, and to indemnify the city for all damages to which it might become liable by reason of the construction of the railroad track's and bridge, were mere matters of contract, as to which the parties could lawfully bind themselves during the period of time that the contract should remain in force. But the city could not, by contract or ordinance, surrender its police power, and the common council could not disable itself to enact ordinances, under the authority conferred by clause 49 of §8655 Burns 1914 (Acts 1905 p. 254), “to secure the safety of citizens and other persons in the running of trains or cars in and through any such city * * *; to require persons or corporations owning or operating railroads to fence their respective railroads * * *; to require such persons and corporations to construct and maintain gates and keep flagmen at railroad crossings, and to provide protection against injury to persons or property from the operation of such railroads, trains or cars; * * *
The stipulation in the franchise contract that gates should be maintained at this crossing and operated day and night could not have restrained the city council from adopting an ordinance requiring the gates to be removed and something else substituted, such as a viaduct or bridge over the track, or'a tunnel under it, or two watchmen, one stationed at each side of the railroad track, if the number of trains operated on the railroad, and the number and kind of vehicles used on the street and the speed at which they were run over the crossing, should make the use of safety gates inadequate as a protection against collisions. Neither did it deprive the council of power to enact an ordinance changing the hours during which the safety gates must be operated.
An ordinance enacting that they should be operated between designated hours, prescribing the qualifications of the operators, and fixing the times when the gates should be open and when they should be closed, and enacting that violations of its provisions might be punished by a fine that could be less
An instruction, directly charging the jury that contributory negligence on the part of plaintiff’s decedent, Charles J. Nicewanner, was a defense as against any liability of defendant for negligence of itself or its employees, which was properly requested, should have been given.
Appellant also asked instructions on several other propositions which should have been given, but we shall not stop to consider whether the instructions that the court gave were full enough to cover any or all of the points to which they related, as appellee insists they were.
Instruction No. 24, given by the court, was so worded as to declare that if the jury believed certain facts, including the alleged fact that “it was the duty of defendant to maintain and operate gates day and night” at this crossing, and that the gates were open when plaintiff’s decedent drove on the track, “the defendant is liable in this action, the deceased himself being free from fault or negligence contributing to his death.” It did not refer to the ordinance in any way nor submit to the jury the question whether the duty referred to was imposed by an ordinance, as it should have done. And the last clause was so framed that the jury might probably understand it as a declaration that the deceased was free from contributory negligence, instead of Understanding it as submitting to them
Instruction No. 25, given by the court, after referring to the franchise contract and ordinance confirming it, under which the court said the railroad was built, contained the following statements, among others: “It is also shown that under and by virtue of said ordinance, contract and franchise, the defendant was required to keep and maintain a light (at said crossing) * * * during the entire night. * * * If the failure of said defendant to maintain said light, if it did so fail, proximately contributed to the accident from and by which decedent lost his life, then and in that case the defendant is liable unless you shall believe from a fair preponderance of the evidence that the decedent was guilty of contributory negligence”, etc.
As was stated above, the complaint was drawn on the theory that plaintiff’s decedent actually saw the gates standing open, it alleged that a light at the crossing was constructed, and did not contain a charge of negligence in failing to maintain the light and keep it burning. The instruction as to defendants’ liability in case its failure to maintain a light at the crossing proximately contributed to cause the injury, therefore, was not within the issues submitted for trial, and should not have been given. The plaintiff is only entitled to recover, if at all, on the cause of action alleged, and an instruction telling the jury that the plaintiff was entitled to recover if she had proved a fact not within the issues was erroneous. Cleveland, etc., R. Co. v. Powers (1909), 173 Ind. 105, 123, 124, 125, 126, 88 N. E. 1073, 89 N. E. 485; Cleveland, etc., R. Co. v. Case (1910), 174 Ind. 369, 375, 377, 91 N. E. 238; Citizens St. R. Co. v. Jolly (1903), 161 Ind. 80, 92, 93, 67 N. E. 935; National Motor, etc., Co. v. Pake (1915), 60 Ind. App. 366, 372, 109 N. E. 787.
Many other rulings are challenged by counsel for appellant, but the questions of law discussed may not arise on a retrial of the case, and we do not consider nor decide them.
The judgment is reversed, with directions to sustain appellant’s motion for a new trial.
Townsend, J., absent.